Kirk Tchnerneshoff, a consultant on the Americans with Disabilities Act, spoke to the Anna Maria City Commission May 19 on the Sandbar alleyway vacation request. Islander Photo: Rick CatlinClick on image to enlarge

Twenty-six years after he first bought the Sandbar restaurant and thought he had it, owner Ed Chiles finally got it.

Following a contentious May 19 meeting of more than three hours that played to a standing-room-only crowd, the Anna Maria City Commission voted 3-2 to approve an alleyway vacation and land swap with Chiles that will allow him to build a rest room facility at the Sandbar that will meet the requirements of the Americans with Disabilities Act.

In exchange for the alleyway vacation, Chiles will build a paved alleyway as a city easement through the middle of the parking lot to his restaurant that can be easily used by the handicapped, including people in a wheelchair, and the general public to access both his restaurant and the beach.

Chiles was facing a settlement agreement under an ADA lawsuit that required him to build a suitable rest room for handicapped patrons. ADA consultants had said the best way to expand the rest room was to build out from the structure, but he needed the vacation to encroach into the alleyway.

When he bought the restaurant in 1979, said Chiles, he believed then that the alleyway had already been vacated, but a 1992 city review failed to find any evidence of a vacation.

U.S. Department of Justice-certified ADA consultant Kirk Tcherneshoff, who has to utilize a wheelchair, said the ADA does not "compel" Chiles to expand the rest room toward the building interior if it means losing retail space or seating. In addition, there are technical issues with utilizing the existing interior for an ADA-compliant rest room, he said.

After his review of the restaurant, his opinion was that the "build-outward option" was the best choice to satisfy the ADA.

He also said that according to the ADA, in concurrence with the justice department, local governments must "reasonably modify" existing codes and laws to assist private entities with becoming ADA compliant unless that government can show that "such modification would alter services." He noted several cases to substantiate his position.

There were a number of objections from the public over the vacation, however, including the fear that Chiles could eventually expand his restaurant.

Robin Wall said Chiles would gain significant land from the vacation and swap and suggested that approval come with conditions regarding noise, use of tents and future expansion.

Others, however, said the swap would benefit the city because the existing alleyway isn’t usable in its current state.

"The alleyway presently serves no purpose to the city and has no meaningful value," said John Cagnina. The vacation and swap allows Chiles to meet the ADA requirement and the new alleyway "enhances all of the city."

Several attorneys representing opponents of the vacation spoke against the measure.

Tampa attorney Matt Farmer said he deals with many cases involving the ADA and, in his opinion, the various ADA cases cited by Tcherneshoff had nothing to do with the present case. He suggested Chiles should modify his own property to become ADA compliant, not the city’s property.

Attorney Ricinda Perry, representing Chiles, pointed out that Chiles already owns the property, that the alleyway in question is just an easement to the city.

Lake Wales attorney Mike Gallaher, representing the Nally family that lives near the Sandbar, said that by Tcherneshoff’s own testimony, expanding the rest room into the alleyway is not the only way to solve the Sandbar’s ADA problem, "just the preferred way."

He indicated that there was more than one reason why Chiles wanted the vacation. "He may have reasons above and beyond the ADA," he suggested, but did not raise the expansion issue.

City Commissioner Duke Miller said he could support the vacation if Chiles would agree to a condition that no future expansion of the restaurant could ever take place, even if the restaurant were sold to a new owner.

"My biggest objection is what’s going to happen in the future," he said.

But Chiles could not agree to that condition. "I would not want to sign that agreement. Besides, if I wanted to expand, I’d have to go through this process again before the planning and zoning board and be right back here at the city commission with a site plan."

Commission Chairperson John Quam said he favored the vacation, but not because the ADA rules require the city to help businesses become ADA compliant.

There are four criteria for the city to grant a variance, he said, and the major issue for him is that the alleyway currently serves no public purpose. By granting the vacation and taking the swap, the city "gives the public a walkable alleyway" with beach access.

Commissioner Linda Cramer moved to pass the ordinance granting the vacation and accepting the alleyway swap. Quam and Commissioner Dale Woodland agreed, while Miller and Commissioner Carol Ann Magill voted against the measure.

The commission then set the meeting to hear the preliminary site plan application for the Sandbar building plan for 6 p.m. Wednesday, June 29.

The Sandbar has proposed several improvements to its facility in the site plan, but has maintained there will be no expansion of the restaurant, other than construction of the ADA-compliant rest rooms.

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